Citation Nr: 1507102
Decision Date: 02/18/15 Archive Date: 02/26/15
DOCKET NO. 09-37 141A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for a left knee disability.
2. Entitlement to a compensable initial rating for bilateral hearing loss, on an extra-scheduler basis.
3. Entitlement to a total disability rating based upon individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Mills, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1959 to March 1961.
These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2008 and May 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.
The Veteran provided testimony at a March 2011 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
In a December 2012 decision, the Board denied entitlement to a compensable rating for bilateral hearing loss. The Board also denied referral for consideration of an extra-scheduler rating for bilateral hearing loss and remanded the issue of entitlement to TDIU. In a separate December 2012 decision, the Board denied entitlement to service connection for a left knee disability.
The Veteran appealed the December 2012 decisions to the United States Court of Appeals for Veterans Claims. In a July 2014 Memorandum Decision, the Court set aside the portions of the Board's December 2012 decisions that determined that referral of the Veteran's claim for an extra-schedular rating was not warranted and that denied service connection for a left knee disability. The July 2014 decision did not disturb the Board's findings regarding the scheduler rating of bilateral hearing loss disability.
In addition, the May 2011 and December 2012 Board decision referred a claim for service connection for a psychiatric disability to the Agency of Original Jurisdiction (AOJ). It does not appear that claim has been adjudicated. Therefore, that claim is again referred to the AOJ.
The issues of entitlement to a compensable initial rating for bilateral hearing loss on an extra-scheduler basis and entitlement to TDIU are REMANDED to the AOJ.
FINDINGS OF FACT
The Veteran's current left knee disability first manifested after separation from service and is unrelated to service or to any incident therein.
CONCLUSION OF LAW
The Veteran's current left knee disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131 , 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2014); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from any notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009).
The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated April 2009.
The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by claimant or representative that demonstrate awareness of what is necessary to substantiate claim).
Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the May 2010 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).
The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. The Veteran has been provided the opportunity to testify at a Travel Board hearing with respect to the claim. The Board is aware that the Veteran has not been provided a VA examination in connection with the claim for service connection for a left knee disability. However, because the competent and credible evidence is against a finding that any event, disease, or injury related to the left knee occurred during service, the Board finds that a VA examination is not required. 38 C.F.R. § 3.159(c) (2014); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Service Connection
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427 (2006).
Service connection for arthritis may be established on a presumptive basis by showing that arthritis manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2014). Where arthritis manifests to a compensable degree within one year following separation from service, it is presumed to have had its onset in service even though there is no evidence of arthritis during service. 38 C.F.R. § 3.307(a) (2014). If the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2014). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic, including arthritis. 38 C.F.R. § 3.309(a) (2014); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996).
The Veteran contends that that a current left knee disability was caused by active service. Specially, he contends that his current left knee disability is related to a left knee injury sustained during basic training doing squat jumps. The Veteran stated that he did not seek treatment for the disability in service, but instead self-treated with over-the-counter pain medications and by putting weight on his right knee. The Veteran has further stated that he has experienced symptoms of pain, giving way, and swelling, since service.
The Veteran's service medical records are negative for complaints or clinical findings related to the left knee. During the February 1961 separation examination, the Veteran's lower extremities were found to be normal and the Veteran specifically denied a history of a trick or locked knee, arthritis, or any joint deformity.
Following separation from service, the first clinical evidence of record related to any knee disability was in May 2006, when the Veteran complained of unspecified knee pain rated as 4 out of 10. The first clinical evidence specific to the left knee is in December 2008, when the Veteran reported knee symptoms of pain, giving way, and stiffness, with no recent history of trauma. Physical examination of the left knee was negative for effusion or laxity. The Veteran's VA primary care physician assessed degenerative joint disease of the left knee and recommended over-the-counter non-steroidal anti-inflammatories and Darvocet. An X-ray was also ordered and an orthopedic referral was suggested if the Veteran's symptoms were not better in one month. In June 2009, the Veteran received an injection in the left knee for swelling and reported pain present since the year prior.
In July 2009, the Veteran was referred for VA orthopedic treatment during which he reported chronic knee pain and intermittent swelling in both knees with good relief of symptoms with ibuprofen. He reported that his problems went back to basic training. He denied use of assistive devices and reported modification of activities when necessary. X-rays showed osteoarthritic changes in the lateral compartments of the femoral tibial joint, greater on the left than the right. An August 2009 MRI revealed severe, complex tearing of the medial meniscus; a tear of the distal anterior cruciate ligament (ACL); chondromalacia of low grade at the lateral compartment, intermediate grade at the medial compartment, and high grade at the patellofemoral compartment; abnormal edematous signal about the proximal tibia; and, small joint effusion with a small/moderate popliteal cyst and prepatellar edema of unspecified etiology. Thereafter, the Veteran continued to complain of knee pain and October 2009 imaging of the left knee showed extensive chondrocalcinosis of the medial and lateral meniscus and moderate-to-advanced osteoarthritis of the patellofemoral joint. In April 2010, the Veteran underwent a left knee arthroscopy and partial meniscectomy for left knee medial compartment degenerative changes and a lateral meniscus tear.
The Veteran did not seek treatment or have any left knee diagnosis for several years following separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board finds that a left knee disability, to include arthritis, did not manifest in service or within one year thereafter, and therefore service connection is not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2014). The credible evidence of record demonstrates that the left knee disability developed many years after service.
The Board acknowledges that the Veteran told the VA orthopedic physician that his left knee problems went back to basic training, and that account was included in the physician's July 2009 treatment notes. However, that transcribed statement from the Veteran is information recorded by a medical examiner, unenhanced by additional medical comment by that examiner. Therefore, it does not constitute competent medical evidence. Bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. Howell v. Nicholson, 19 Vet. App. 535 (2006); LeShore v. Brown, 8 Vet. App. 406 (1995). There is no objective evidence of record to suggest that the Veteran injured his left knee in service, was treated for any left knee disability during service, or was treated for left knee symptoms post service until May 2006. As the account of ongoing symptoms contained in the July 2009 VA physician's notes appears to have been based solely on the Veteran's statements, it is no more probative than the facts alleged by the Veteran himself. Swann v. Brown, 5 Vet. App. 229 (1993). The Board also finds it significant that, despite having sought prior medical treatment for the left knee, the Veteran did not specifically relate any left knee symptoms to active service during medical treatment until after he had filed a claim for service connection for a left knee disability.
Moreover, neither the July 2009 VA orthopedic physician nor the Veteran's VA primary care physician, who has also treated the Veteran for his left knee disability, have opined on when the Veteran's currently diagnosed left knee disability began, or offered a medical rationale linking that disability to his period of active service. Therefore, the Board finds the competent medical evidence does not relate the Veteran's current left knee disability to service.
The Board acknowledges the Veteran's statements that he has had left knee problems since discharge. Although he is competent to report continuity of symptomatology, the Board finds that those statements are not credible. The Veteran's allegations are inconsistent with the contemporaneous record. While the Veteran sought treatment and made complaints for other conditions in service, he did not report any left knee problems. The Board finds it likely that, had the Veteran sustained a left knee injury in service, he would have complained of it at that time, as he complained of other ailments during service. The Veteran's failure to report any complaints pertaining to the left knee at that earlier time is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. Moreover, June 2009, the Veteran reported that his left knee pain began a year prior, which is inconsistent with his present reports of an in-service onset.
In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498 (1995); Buchanan v. Nicholson, 451 F.3d 1331 (2006) (VA can consider bias in lay evidence and conflicting statements of the Veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (credibility of lay evidence can be affected and impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341 (1999) (in case where claimant was also a physician, and therefore a medical expert, Board properly considered appellant's own personal interest in outcome of the case).
In the July 2014 Memorandum Decision, the Court set aside the Board's denial of the Veteran's left knee claim. Specifically, the Court found that the Board based the entire rationale for a credibility determination on the lack of contemporaneous medical evidence. However, the Board notes that a clinical evaluation at the February 1961 separation examination found the lower extremities to be normal. That is not a lack of contemporaneous medical evidence, but medical evidence specifically showing that upon examination, not lower extremity disorders were found at the time of separation from service. Therefore, the Board finds that the Veteran's reported history of having a left knee disability since service is not credible.
In addition, the Board considers it significant that the first evidence of any complaints or clinical findings of left knee problems is dated more than 45 years after the Veteran's separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In view of the lengthy period without complaints or clinical findings related to the left knee, the Board finds that the preponderance of the evidence is against a finding of a continuity of symptomatology, and that weighs heavily against the claim. Therefore, the Board finds that the Veteran's reported history of having a left knee disability since service is not credible. In addition to the lack of evidence showing that a left knee disability manifested during service or within close proximity to service, the more probative evidence of record does not link any current diagnosis to the Veteran's service.
Private medical records show treatment for a right knee disability in April 2003 but are negative for complaints related to the left knee, and VA medical records dated prior to May 2006 show that the Veteran had a steady gait, ambulated well and without assistance, tried to stay busy and not sit around, and was involved in activities such as gardening, hunting, and messing around outside. The Board finds it likely that there would have been complaints or clinical findings during other treatment, including treatment in April 2003, at which time he sought treatment for right knee problems. Instead, VA treatment notes dated prior to May 2006 show that the Veteran was routinely noted to ambulate well or without assistance, and he reported being very active and unable to sit for very long, without any complaints related to the left knee. Therefore, there was further affirmative evidence showing that he did not have a chronic or continuous left knee disability since his period of service. Accordingly, the Board considers the Veteran's account of a left knee injury in service and left knee symptoms since service to be inconsistent with other evidence of record, and therefore, not credible.
Moreover, while the Veteran is competent to provide testimony or statements relating to symptoms he has personally experienced, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465 (1994). The Board must determine on a case by case basis whether a veteran's particular disability is the type for which lay evidence is competent. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428 (2011). In this case, the record does not show, nor does the Veteran contend, that he has specialized education, training, or experience that would qualify him to render a medical opinion on the etiology of arthritis. The issue in this case is outside the realm of common knowledge of a lay person, as a nexus is not obvious merely through observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, the Veteran has never reported that any medical professional has told him that his left knee disability is related to service.
The Board finds that the weight of the credible evidence demonstrates that the Veteran's left knee disability first manifested many years after active service and is not related to active service or to any incident therein. As the preponderance of the evidence is against the claim for service connection for a left knee disability, that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for a left knee disability is denied.
REMAND
The Court's July 2014 Decision remanded the Veteran's claim for an increased rating for a bilateral hearing loss disability for further consideration of the appropriateness of an extra-schedular rating. The Court found the Board's extra-schedular analysis to be inadequate. The Court noted that on examination, in June 2011, the VA audiologist opined that even with amplification, the Veteran's ability to work effectively in both physical and sedentary employments would be significantly affected.
The Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, that does not preclude the Board from considering whether referral to the appropriate officials is required. Floyd v. Brown, 9 Vet. App. 88 (1996). In light of the findings of the June 2011 VA examination, the Board finds that referral is warranted in this case.
In December 2012, the Board found the issue of entitlement to TDIU had been raised by the record in the course of the Veteran's challenging the rating assigned for the bilateral hearing loss disability and remanded the issue for a VA examination. However, a review of the record shows that the Veteran has not yet been provided a VA examination. Stegall v. West, 11 Vet. App. 268 (1998).
Here, the Veteran is in receipt of a 0 percent rating for bilateral hearing loss and a 10 percent rating for tinnitus. He is not service-connected for any other disability. His combined rating is 10 percent. Accordingly, he does not meet the percentage criteria for a schedular TDIU rating. 38 C.F.R. § 4.16(a) (2014). Nevertheless, the Board must still consider whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Therefore, remand is required.
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for an examination for the purpose of determining whether the Veteran is unemployable due to service-connected disabilities. The examiner must review the claims file and must note that review in the report. All findings and conclusions should be supported by a rationale, and the examiner should reconcile the opinion with all other evidence of record, including the VA treatment notes showing that the Veteran occasionally wore hearing aids and had been performing building maintenance, and the June 2011 VA examiner's opinion that the Veteran's bilateral hearing loss significantly affected his ability to work effectively. Specifically, the examiner should state whether the Veteran's hearing loss and tinnitus, without consideration of any nonservice-connected disabilities, and irrespective of age, make him unable to secure or follow a substantially gainful occupation. If the Veteran is felt capable of employment, the examiner should state what type and what accommodations would be needed due to the service-connected disabilities. The examiner should also provide an opinion as to whether the service-connected bilateral hearing loss causes frequent hospitalization or marked interference with employment.
2. Then, refer the case to the Director of Compensation and Pension Service for consideration of entitlement to increased ratings for bilateral hearing loss, on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1) (2014) and whether TDIU is warranted pursuant to 38 C.F.R. § 4.16(b) (2014).
3. Then, readjudicate the claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs